52 Mass. App. Ct. 631 | Mass. App. Ct. | 2001
More than twenty-five years ago, after a jury-waived trial, Scott Wheeler,
Termination of Wheeler’s employment in consequence of the broad sweep of G. L. c. 140, § 131, would appear to work a harsh result for a youthful transgression that he justifiably could have considered a closed chapter.
Wheeler’s new trial motion contended that he was deprived of the effective assistance of counsel due to trial counsel’s (1) conflict of interest; and (2) inadequate pretrial preparation and postconviction representation. Accordingly, he carried the burden of demonstrating that his counsel’s performance fell measurably below that of reasonably competent counsel, thereby depriving him of an otherwise available substantial ground of defense, Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), and, consequently, that justice may not have been done. See Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979).
1. Factual support for the motion. To support his motion, Wheeler filed only his own affidavit.
On January 19, 1973, Wheeler, then age fifteen, was arraigned on a charge of statutory rape of a fifteen-year-old girl alleged to have occurred on December 31, 1972. After only one intervening court appearance, on March 9, 1973, he was adjudicated delinquent.
In 1981, Wheeler became a police officer in Franklin, where he served with apparent success. In October, 1998, after seventeen years on the police force, he received notice that his permit to carry a handgun would not be renewed and, consequently, he would be terminated from employment as a Franklin police officer.
The trial judge has since retired. Wheeler’s mother and father, who arranged for counsel, are now deceased, as is trial counsel, attorney Patrick Murphy. Wheeler asserts that, besides representing him, attorney Murphy simultaneously represented three unnamed juvenile codefendants, and an unnamed eighteen year old adult codefendant, all charged with the same statutory rape. He also asserts that he never met or discussed the case or any available defenses with attorney Murphy prior to his trial, and, to the best of his knowledge, neither did his parents. He contends that he was never advised of the perils of joint representation of codefendants, either by his attorney or by the judge.
In essence, Wheeler claims that a genuine conflict of interest existed in the simultaneous representation of himself and the other codefendants, juvenile and adult, by virtue of the divided loyalty of attorney Murphy, who was motivated by an asserted desire to prevent Wheeler and the other juveniles from disclosing that the eighteen year old adult had engaged in consensual intercourse with the minor on several other occasions. See Commonwealth v. Goldman, 395 Mass. 495, 503, cert. denied, 474 U.S. 906 (1985) (actual conflict of interest may be proved through a showing of an impairment of counsel’s independent professional judgment where regard for the attorney’s duty to one client would lead to disregard of his duty to the other);
Alternatively, Wheeler posits that the joint representation created a potential conflict of interest that materialized into actual prejudice when the codefendants, himself included, failed to testify at trial. See Commonwealth v. Davis, 376 Mass. 777, 781, 784 (1978) (a potential conflict of interest arises whenever a single attorney represents more than one defendant in a criminal action). Had he testified, he maintains, a significant difference in his level of culpability would have been presented to the judge both at trial and on disposition. Although he admits physical contact with the complainant, Wheeler denies having had sexual intercourse with her.
2. Denial of the motion. On appeal, we examine a decision to deny a motion for a new trial to determine whether there has been an abuse of discretion or other error of law. See Commonwealth v. Grace, 397 Mass. 303, 307 (1986); Commonwealth v. Stote, 433 Mass. 19, 22 (2000). “The decision to deny a motion for a new trial lies within the sound discretion of the judge and will not be reversed unless it is manifestly unjust or the trial was infected with prejudicial constitutional error.” Commonwealth v. Medina, 430 Mass. 800, 802 (2000). We conclude that neither ground for reversal is present here. We begin our analysis with the familiar precept that a judge may grant a motion for a new trial only “if it appears that justice may not have been done.” Mass.R.Crim.P. 30(b).
(a) The presumption of regularity and the principle of finality. Relying on the rule’s statement that a judge may grant a new trial motion “at any time if it appears that justice may not have been done,” Wheeler argues that the twenty-five year hiatus between trial and the filing of his new trial motion does not invalidate such motion. This is a correct statement of the law. See Commonwealth v. Francis, 411 Mass. 579, 585-586 (1992) (lapse of time does not, in and of itself, constitute waiver). Implicit in a judge being able to grant a motion “at any time” must be a defendant’s ability to file such a motion at any time.
However, the fact that the mere passage of time does not ■invalidate a new trial motion does not mean that the passage of
“[Wjhen the defendant leaves his guilty pleas unchallenged for a lengthy period of time, so that the contemporaneous record of the plea is lost . . . and means of reconstruction are made impractical or impossible due to the death or retirement of judges and court reporters, the unavailability of witnesses, the inherent weaknesses and failures of recollection, and other factors commonly associated with the passage of time-. . . the absence of a record, and the inability effectively to reconstruct it, may be directly attributed to the defendant’s delay and may be said to be the defendant’s fault.”
Commonwealth v. Lopez, 426 Mass. at 661.
Rule 30(b) motions are collateral attacks on final decisions. See id. at 662. The defendant has the burden of producing a credible reason to reverse the final decision, arrived at after trial or plea, that outweighs the risk of prejudice to the Commonwealth. See id. at 661-665. In those instances where the defendant’s attack on his conviction or his plea by a rule 30(b) motion proceeds, necessarily, on a basis extrinsic to an unavailable contemporaneous record, a judge is not required to accept the defendant’s self-serving affidavit as sufficient to satisfy his burden. When, through no fault of the Commonwealth, the passage of time has destroyed or eroded the record of the proceeding, or other indicia through which a defendant may support and the Commonwealth may rebut the factual basis for the new trial motion, the defendant rather than the Commonwealth must bear the consequences. This rationale
The presumption of regularity and the principle of finality are particularly applicable when, as here, adverse consequences appear, especially adverse consequences not contemplated or considered possible at the time of the proceeding.
(b) The insubstantiality of the defendant’s showing. The judge herein conducted a nonevidentiary hearing at which Wheeler’s counsel expressed the view that an evidentiary hearing was not required. Even without this concession, the judge’s determination to decide the new trial motion on the affidavits, without oral testimony, would have been a proper exercise of discretion. See Commonwealth v. Stewart, 383 Mass. 253, 257 (1981).
Wheeler failed to raise a substantial issue necessitating a hearing. See Commonwealth v. Grace, 397 Mass. at 313; Com
Although the conflict of interest was asserted in precise terms, see Commonwealth v. Pingaro, 44 Mass. App. Ct. at 53, Wheeler’s factual support was speculative, premised only upon his unsubstantiated, self-serving, and conclusory characterizations that his attorney represented other juveniles and the adult codefendant
Apart from his impressionistic and conclusory assertions, Wheeler offered the judge very little reliable and credible evidence. Whether the juvenile codefendants were tried jointly or separately is not known, nor is there a record of whether Wheeler was tried as a principal or a joint venturer and of the evidence upon which the judge adjudicated him delinquent.
Similarly lacking in substance are Wheeler’s contentions that
Order denying motion for new trial affirmed.
While the case relates to a juvenile complaint, because the defendant is now in his forties, we sometimes refer to Mr. Wheeler as “the defendant.”
The statute rendered ineligible for licensure any applicant who has ever been convicted or adjudicated a youthful offender, or a delinquent child, for a broad array of criminal activity. Specifically, G. L. c. 140, § 131 (d)(i), inserted by St. 1998, c. 180, § 41, expressly restricts the granting of a license to carry a firearm to anyone who “has, in any state or federal jurisdiction, been convicted or adjudicated a youthful offender or delinquent child for the commission of (a) a felony; (b) a misdemeanor punishable by imprisonment for more than two years; (c) a violent crime as defined in section 121; (d) a violation of any law regulating the use, possession, ownership, transfer, purchase, sale, lease, rental, receipt or transportation of weapons or ammunition for which a term of imprisonment may be imposed; or (e) a violation of any law regulating the use, possession or sale of controlled substances as defined in section 1 of chapter 94C.”
The defendant’s adjudication for statutory rape appears to fall, at least, within the disqualifying proscriptions of subsection (a).
See G. L. c. 119, § 60, as amended by St. 1991, c. 488, § 1, which provides, in pertinent part, that an adjudication or disposition of delinquency or evidence given in a delinquency proceeding “shall not be received in evidence or used against such child for any purpose in any proceedings in any court . . . nor shall such adjudication or disposition or evidence operate to disqualify a child in any future examination, appointment, or application for public service under the government either of the commonwealth or of any political subdivision thereof.”
We express no opinion upon whether G. L. c. 119, § 60, might avail Wheeler in a civil proceeding against the town of Franklin. Neither is it clear whether Wheeler must carry a firearm to serve as a police officer. Wheeler’s brief advises that his termination is the subject of an unresolved arbitration proceeding.
Wheeler actually filed two affidavits, one in support of his new trial motion, and another in support of a motion to reconsider. Although he purports to appeal from the denial of both motions, his brief made only passing reference to the latter and does not rise to the level of appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 919 (1975). See also Lyman v. Commissioner of Correction, 46 Mass. App. Ct. 202, 208 (1999).
Because the assertions in the affidavit filed with the motion for reconsideration were not before the judge in ruling on the motion for a new trial, we need not consider them. See Commonwealth v. Ramos, 402 Mass. 209, 216 (1988). Nonetheless, we do so to illuminate the issues and to demonstrate the paucity of support for the defendant’s new trial motion.
On appeal, the parties expanded the appellate record to include the juvenile complaints, which contain minimal notations reflecting the dates of court appearances and the presence of the juvenile’s parents. We have further expanded the record with the docket and other papers obtained from the clerk of Wrentham District Court. Although sparse, these indicate that attorney Patrick Murphy represented the defendant and that prior to trial he filed a motion to dismiss that was denied.
Wheeler was also the subject of two other juvenile complaints charging open and gross lewdness (G. L. c. 272, § 16) on different dates from the
We emphasize that the words “justice may not have been done” in rule 30(b) address whether justice was done in the defendant’s conviction for the underlying offense. The words do not encompass whether, with the benefit of hindsight, any collateral or contingent consequences flowing from the conviction appear to work an unfairness. The collateral or contingent consequences of a conviction, by themselves, do not amount to justice not being done in the underlying proceeding. See Commonwealth v. Albert A., 49 Mass. App. Ct. 269, 271-272 (2000) (to the extent the juveniles believed that their juvenile records would be confidential at the time of their admission to sufficient facts, they were mistaken). See also Commonwealth v. Morrow, 363 Mass. 601, 605-606 (1973); Commonwealth v. Hason, 27 Mass. App. Ct. 840, 843 (1989).
When the basis alleged in the new trial motion is not prejudicial constitutional error, but some other manifest injustice, then the determination that justice may not have been done equates with a substantial risk of a miscarriage of justice. See Commonwealth v. LeFave, 430 Mass. 169, 171-174 (1999).
Because the rule of waiver may apply to an ineffective assistance of counsel claim, see id. at 173, there may be instances where a judge grants a new trial motion for a previously waived ineffective assistance of counsel claim. When a judge exercises discretion to grant relief from a waived ineffective assistance of counsel claim, there must be a substantial risk of a miscarriage of justice warranting relief from waiver. See Commonwealth v. Curtis, 417 Mass. 619, 626 (1994); Commonwealth v. Gagliardi, 418 Mass. 562, 565 (1994), cert. denied, 513 U.S. 1091 (1995); Commonwealth v. LeFave, 430 Mass. at 173 (1999). The trial judge’s exercise of discretion granting relief from waiver will be reviewed by an appellate court under the abuse of discretion standard to determine whether the trial judge was correct in deciding that there would be a miscarriage of justice if relief from waiver were not granted. See Commonwealth v. Amirault, 424 Mass. 618, 649 (1997); Commonwealth v. LeFave, 430 Mass. at 173-174 & n.5.
Contingent or collateral consequences have begun to play an ever-increasing role in rule 30(b) challenges to convictions, whether after trial or a plea of guilty. The consequences include (a) immigration status, see Commonwealth v. Hason, 27 Mass. App. Ct. at 843; Commonwealth v. Hilaire, 51 Mass. App. Ct. 818, 819-821 (2001); (b) Federal sentencing enhancement, see Commonwealth v. Lopez, 426 Mass. at 663-664; Commonwealth v. Grant, 426 Mass. at 669-673; Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48-55 (1997); (c) sex offender registration, see Commonwealth v. Albert A., 49 Mass. App. Ct. at 271 (2000); and (d) parole eligibility, see Commonwealth v. Santiago, 394 Mass. 25, 30 (1985).
While the judge found that the Commonwealth did not dispute joint representation, the transcript of the hearing reflects the Commonwealth’s contention that it had no way of knowing, one way or the other, whether Wheeler’s assertion of joint representation was accurate. This showing could have been assisted by the defendant’s obtaining from the clerk the dockets of the juvenile and adult codefendants to substantiate that there was, in fact, joint representation, to show whether the cases were tried together or separately, and to clarify the order of the trials. See note 6, supra.
As to these, the absence of a record and the inability to reconstruct it effectively may be directly attributed to the defendant’s delay and may be said to be the defendant’s fault. See Commonwealth v. Lopez, 426 Mass. at 661-662 (discussing the presumption of regularity and the principle of finality).
Although Wheeler’s second affidavit promised to produce corroborative evidence from two of the juvenile codefendants, such evidence was not forthcoming. Supporting affidavits from these individuals might have strengthened his allegations. See Commonwealth v. Lopez, 426 Mass. at 665.
We observe in passing that an argument asserting error in the trial judge’s failure to conduct a colloquy as to joint representation would be unavailing. See Commonwealth v. Davis, 376 Mass. at 784-785 (imposing on a judge, as a matter of court rule rather than constitutional mandate, an affirmative duty in instances of joint representation to inquire on the record as to whether each defendant has been adequately informed of the risks and potential dangers of joint representation and has acknowledged an understanding of this
